After a delay of six months, the Supreme Court of Canada hears arguments against the federal carbon pricing system. THE CANADIAN PRESS / Adrian Wyld
Jason MacLean, University of New Brunswick and Nathalie Chalifour, University of Ottawa / University of Ottawa
The Supreme Court of Canada will begin hearing appeals on September 22nd on three counts to determine whether Ottawa's national carbon price is constitutional. Appeal courts in Saskatchewan and Ontario had previously upheld the law, but the Alberta Court of Appeals ruled that it was unconstitutional and encroached upon the powers of the provinces.
Contrary to what critics of federal carbon pricing legislation have said, neither the provincial powers to tackle climate change nor the balance of the Canadian Federation are threatened.
However, it is about Canada's ability to contribute to global climate action under the 2015 Paris Agreement. The deal aims to limit global warming to 1.5 ° C above pre-industrial norms, a goal that is increasingly preoccupying the public as devastating smoke spills across the country.
In 2016, Ottawa achieved provincial and territorial consensus on a coordinated national approach in the Vancouver Declaration on Clean Growth and Climate Change. The Vancouver Declaration established the Pan-Canadian Framework for Clean Growth and Climate Change, a detailed plan of action that everyone but Saskatchewan can agree to.
In 2018, Ottawa passed the Greenhouse Gas Pollution Pricing Act to implement the pan-Canadian framework. The law acts as a backstop – a national safety net – with two parts. The first has a fee for a wide range of greenhouse gas emitting fuels. The second introduces a “performance-based performance system” whereby industrial plants have to pay for emissions that exceed an annual limit.
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It is crucial that the backstop only applies in provinces or territories in which this is requested or in which emissions have not been assessed by a direct price or cap-and-trade system on the minimum benchmark set by Ottawa. Additionally, the backstop is "sales neutral," which means that all funds raised by Ottawa will be returned to the jurisdiction. Otherwise, provinces and territories can freely regulate within their borders, allowing them to set even stricter emission limits.
Challenging coordinated climate protection measures
With this coordinated national approach, Canada appeared poised to make a significant contribution to global climate protection, with both levels of government acting cooperatively.
Soon thereafter, however, Ontario and Alberta passed the so-called "Saskatchewan Strategy" to challenge the law on grounds of jurisdiction. Each province asked its respective appellate court for an opinion on whether Ottawa has jurisdiction to regulate greenhouse gas emissions.
United Conservative Party Chairman Jason Kenney and Ontario Prime Minister Doug Ford cheer supporters at an anti-carbon tax rally in Calgary on October 5, 2018. THE CANADIAN PRESS / Jeff McIntosh
In 2019, a majority in the Saskatchewan Court of Appeals concluded that Ottawa ruled under the "Department of National Affairs" of the federal government's constitutional "peace, order and good government." Shortly thereafter, a majority in the Ontario Court of Appeals reached the same conclusion. However, in 2020, a majority in the Alberta Court of Appeals concluded that Ottawa did not have jurisdiction to regulate greenhouse gas emissions. All three decisions are now before the Supreme Court of Canada.
The constitutional challenges facing these provinces are that affirming Ottawa's authority to regulate greenhouse gas emissions would penetrate too deeply into the jurisdiction of the provinces and jeopardize the balance of the Canadian Federation.
However, the "Saskatchewan Strategy" of challenging Ottawa's jurisdiction was also about continuing a public order dispute in another way. Climate policy, the provinces and their proponents argue, should be viewed as a local matter that is best left to local governments, in accordance with the constitutional principle of subsidiarity. The idea that public policy issues should be addressed at the most effective level of government that is closest to the affected citizens.
None of the arguments are valid.
Canadian federalism is flexible and cooperative
Recognizing the federal government's responsibility to regulate greenhouse gas emissions as a “national concern” will neither displace the provincial climate regulations nor change the balance of federalism. The Supreme Court of Canada stated this more than 30 years ago in R. vs. Crown Zellerbach Canada Ltd. made clear.
This case concerned the federal government's responsibility to regulate marine pollution, including total dumping in British Columbia's coastal waters. The court recognized federal jurisdiction to regulate marine pollution as it is a cross-border issue that extends beyond both BC and Canada.
In 2019, the Doug Ford government in Ontario requested gas stations to put a sticker on pumps that read, "The federal carbon tax will cost you." The Ontario court has since found the stickers to be unconstitutional. THE CANADIAN PRESS / Chris Young
Since the Crown Zellerbach case, the Supreme Court of Canada has further clarified that where both provincial and federal laws apply to a regulatory problem, those laws may co-operate. This overlap helps protect against the creation of legal vacuums in which no level of government acts, which would undermine the actual purpose of a separation of powers between the federal and state governments. it also recognizes the increasing complexity of Canadian society.
Only in cases where federal and state laws are genuinely in conflict – where it is impossible to obey both laws, or where one state law thwarts the purpose of a federal law – is federal law paramount. And the courts will interpret such potential conflicts narrowly to ensure the jurisdiction of the provinces and to facilitate federal-state cooperation.
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This is how effective environmental regulation works in Canada. In addition to federal law, the city of Victoria also regulates wastewater discharge into the ocean. Ottawa regulates toxic pollution at the federal level under Canada's Environmental Protection Act in conjunction with the provincial pollution laws. Endangered species are protected the same way: there is a federal safety net in place to stop endangered species laws in the provinces.
The urgent need for cooperative climate protection measures
The subsidiarity principle carefully recommends that regulatory action should be taken by the level of government that is most effective and closest to the citizens concerned. Opponents of the Greenhouse Gas Pollution Pricing Act argue that this supports the provincial authority on greenhouse gas emissions. But it also supports the argument that the regulatory response must be global, as climate change affects everyone. In the absence of a global constitution, this means that a national response is required.
In the current Canadian context, there is no evidence that the provinces alone can provide an effective level of climate governance. Rising emissions from the oil sands of Alberta and Saskatchewan will hamper Canada's efforts to achieve net-zero emissions by 2050. Ontario has pulled out of the Quebec-California carbon market, canceled its renewable energy investment programs, and implemented a less ambitious climate change plan that aims to increase carbon emissions by 30 million tons by 2030.
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While federal greenhouse gas emission pricing law is not enough to meet Canada's initial – and especially ambitious – Paris Agreement target, let alone Canada's net-zero drive, it doesn't bolster the provincial case for the local regulator. Instead, the urgent need for greater cooperation between the federal and state governments in climate protection measures is further made clear.
In 2018, the United Nations Intergovernmental Panel on Climate Change special report on 1.5 ° C of global warming made a clear call for "quick," "wide-ranging" and "unprecedented" transitions to achieve "deep emissions reductions in all sectors" to reach. We can hardly afford legal disputes and the politicization of the constitutional principle. Any moment of delay makes these transitions more difficult and costly, and reduces the likelihood that we will avert the devastating damage of climate destabilization.
Jason MacLean, Assistant Professor of Law at the University of New Brunswick; and Nathalie Chalifour, Associate Professor in the Law School of L’Université d & # 39; Ottawa / University of Ottawa
This article is republished by The Conversation under a Creative Commons license. Read the original article.